Posted on 08/30/2013 12:02:15 PM PDT by Jim Robinson
By Ilya Shapiro, Senior Fellow In Constitutional Sudies and Editor-In-Chief, Cato Supreme Court Review
As we head into a potential government shutdown over the funding of Obamacare, the iconoclastic junior senator from Texas — love him or hate him — continues to stride across the national stage. With his presidential aspirations as big as everything in his home state, by now many know what has never been a secret: Ted Cruz was born in Canada.
(Full disclosure: I’m Canadian myself, with a green card. Also, Cruz has been a friend since his days representing Texas before the Supreme Court.)
But does that mean that Cruz’s presidential ambitions are gummed up with maple syrup or stuck in snowdrifts altogether different from those plaguing the Iowa caucuses? Are the birthers now hoist on their own petards, having been unable to find any proof that President Obama was born outside the United States but forcing their comrade-in-boots to disqualify himself by releasing his Alberta birth certificate?
No, actually, and it’s not even that complicated; you just have to look up the right law. It boils down to whether Cruz is a “natural born citizen” of the United States, the only class of people constitutionally eligible for the presidency. (The Founding Fathers didn’t want their newly independent nation to be taken over by foreigners on the sly.)
What’s a “natural born citizen”? The Constitution doesn’t say, but the Framers’ understanding, combined with statutes enacted by the First Congress, indicate that the phrase means both birth abroad to American parents — in a manner regulated by federal law — and birth within the nation’s territory regardless of parental citizenship. The Supreme Court has confirmed that definition on multiple occasions in various contexts.
There’s no ideological debate here: Harvard law professor Laurence Tribe and former solicitor general Ted Olson — who were on opposite sides in Bush v. Gore among other cases — co-authored a memorandum in March 2008 detailing the above legal explanation in the context of John McCain’s eligibility. Recall that McCain — lately one of Cruz’s chief antagonists — was born to U.S. citizen parents serving on a military base in the Panama Canal Zone.
In other words, anyone who is a citizen at birth — as opposed to someone who becomes a citizen later (“naturalizes”) or who isn’t a citizen at all — can be president.
So the one remaining question is whether Ted Cruz was a citizen at birth. That’s an easy one. The Nationality Act of 1940 outlines which children become “nationals and citizens of the United States at birth.” In addition to those who are born in the United States or born outside the country to parents who were both citizens — or, interestingly, found in the United States without parents and no proof of birth elsewhere — citizenship goes to babies born to one American parent who has spent a certain number of years here.
That single-parent requirement has been amended several times, but under the law in effect between 1952 and 1986 — Cruz was born in 1970 — someone must have a citizen parent who resided in the United States for at least 10 years, including five after the age of 14, in order to be considered a natural-born citizen. Cruz’s mother, Eleanor Darragh, was born in Delaware, lived most of her life in the United States, and gave birth to little Rafael Edward Cruz in her 30s. Q.E.D.
So why all the brouhaha about where Obama was born, given that there’s no dispute that his mother, Ann Dunham, was a citizen? Because his mother was 18 when she gave birth to the future president in 1961 and so couldn’t have met the 5-year-post-age-14 residency requirement. Had Obama been born a year later, it wouldn’t have mattered whether that birth took place in Hawaii, Kenya, Indonesia, or anywhere else. (For those born since 1986, by the way, the single citizen parent must have only resided here for five years, at least two of which must be after the age of 14.)
In short, it may be politically advantageous for Ted Cruz to renounce his Canadian citizenship before making a run at the White House, but his eligibility for that office shouldn’t be in doubt. As Tribe and Olson said about McCain — and could’ve said about Obama, or the Mexico-born George Romney, or the Arizona-territory-born Barry Goldwater — Cruz “is certainly not the hypothetical ‘foreigner’ who John Jay and George Washington were concerned might usurp the role of Commander in Chief.”
The Birthers are wrong on many fronts. “Natural Born Citizen” means Citizen at Birth and NOTHING else.
Besides? The Constitution CLEARLY gives the States and Congress the power, ALONE, to decide qualifications for POTUS. You Birthers claim to support the Constitution, yet you do not respect the process the Constitution clearly sets up for determining such things.
Cruz is eligible, and you are wrong. You are not taking a “principled stand” -— you are instead trying to press your will on the vast majority of Conservatives who do not agree with you.
I agree 100%.
Heck I didn’t even agree with Cruz on healthcare, but I support him 100%.
Go Cruz.
And Palin.
I agree to that my friend!
Thank you for posting this, JimRob. Common sense hasn’t been very common on a lot of threads about potential presidential candidacies of Td Cruz, Marco Rubio or Bobby Jindal. A natural-born citizen of the U.S. is a person who was a U.S. citizen at birth, under the laws in place ar the time if his birth. Period.
Me, too, which is why I did a double-take when I read this above:
I'm pretty sure I've heard Levin make a good case against citizen status for offspring of illegal aliens.
Neither CATO nor Levin have an ounce of Legal authority in America. Both made convincing arguments that the individual mandate was unconstitutional. Clearly the judicial branch is controlled by liberal dems... sad, but true.
All the same, I trust their opinions more than I do most others.
I am so pissed off at the left and their phony president and his communist ways that I would vote for a Russian born with both parents Russian capitalist and freedom lover just to spite those a holes for what they put our country through.
I know it might be wrong, but damn the torpedoes. Cruz has my vote.
I trust the opinions of the Founding Fathers over a couple of 21st century neocons.
The Supreme Court of the United States has never applied the term “natural born citizen” to any other category than “those born in the country of parents who are citizens thereof”.
"The citizenship of no man could be previous to the declaration of independence, and, as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776."....David Ramsay, 1789.
A Dissertation on Manner of Acquiring Character & Privileges of Citizen of U.S.-by David Ramsay-1789
“I will no longer follow the argument that if I don’t vote for whatever R is on the ballot I am insuring a dim.”
Tell that to Ken C. in Virginia.
Supporting the "electable" Dole, McCain and Romney gave us Clinton and Obama. Supporting the crazy conservative gave us President Reagan.^^^ this cannot be said enough. I don't think Cruz is the guy though. What's wrong with Lee? He seems far more Reaganesque to me.
Here are some lessons from history: Gerald Ford, Daddy Bush (not Prescott), Bob Dole, John McCain, Mitt Romney. It is impossible for a “moderate” Republican to win the WH.
Absolutely no living expert agrees with.
You are forced to misquote and falsify what dead people believed because they are not here to tell you that you are wrong.
And the philosophers keep chasing their tail without God.
"A free people [claim] their rights as derived from the laws of nature, and not as the gift of their chief magistrate." --Thomas Jefferson: Rights of British America, 1774. ME 1:209, Papers 1:134
Which by implication pointed to the Lord above them, although Tom Jeff really did himself a disservice by editing his bible down. Full-on Christianity is not a bunch of superfluous ornamentation. It is the plan of divine power from alpha to omega.
The Declaration of Independence is a document with its roots in the law of God. Perhaps the best place to begin understanding how the Declaration serves in this capacity is to discern how the framers understood and applied its principles to the creation and formation of civil government. If we can understand how they took the Declaration's principles and applied them to the formation of constitutions, then we too should be able to apply those same principles to any other legal difficulties that our constitutional governments may face.
The first paragraph of the Declaration of Independence sets the stage for the American revolution and its indispensable reliance on the laws of God, the Creator. It declares:
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with one another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitles them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
By invoking the "Laws of Nature and of Nature's God" the 56 signers of the Declaration incorporated a legal standard of freedom into the forms of government that would follow. The theory of freedom adopted was simply that God's law was supreme and gave freedom. The phrase "Laws of Nature and of Nature's God" referred to the laws that God in his capacity as the Creator of the universe had established for the governance of people, nations and nature. These laws are variously described as the laws of Creation, God's Creation laws or as the framers elected to refer to them, as the laws of nature and of nature's God. This body of law, whatever it is called, can be ascertained by people through an examination of God's creation, the text of the Bible, and to a certain degree, instinct or reason.
The decision to expressly rely upon God's law of creation was not a superficial one, but ably debated for many years before and after the Declaration was drafted. Thomas Jefferson, for instance, reflecting on the Declaration of Independence, wrote in 1825 that its essential point was "not to find out new principles, or new arguments, never before thought of, not merely to say things which had never been said before; but to place before mankind the common sense of the subject." For the common sense of the subject, the framers turned to the laws of creation. They gave the principles of that law expression in the Declaration. The American Revolution was the context in which the Declaration's principles were discerned and expressed for all the world to hear and consider anew.
The law is more than your silly opinion.
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